Many kinds of evidence are used in personal injury cases. While documents are most common, such as police reports and medical records, testimony from witnesses is also common. This presents a problem: witnesses can provide valuable information about what happened, but they are also human, and humans have opinions—opinions that can be wrong. When a witness starts to give their opinion or make guesses at what happened, it’s called speculation.
Speculation is not considered reliable, and it is not allowed as evidence in court cases. While it’s possible for someone to make an educated guess about something and be correct, there is no way to verify that in the courtroom. Courts rely only on factual evidence, such as what the witness actually saw or heard, and not the witness’s guesses about what else may have occurred.
Common examples of speculation include:
- Stating why something happened. For example, a witness states that they saw the driver swerve suddenly in a car accident case. That’s a fact. But if asked why the driver swerved, they can only speculate—they weren’t in the car and they don’t know.
- Making character judgments. Imagine that an insurance representative came to your house after a neck injury claim, and noted that you weren’t wearing your neck brace. That’s a fact. But if they say that you seem like the kind of person who would fake an injury, they’re speculating.
- Filling in the blanks. A witness saw an alleged drunk driving accident. She remained near the scene afterward and saw the police give a breathalyzer test to the driver. Later, she saw that he was arrested. Those are facts. But if asked whether the driver was intoxicated, she can only speculate—she did not see the result of the breath test.
Is speculation ever allowed?
As a general rule, no. However, sometimes witnesses are brought in specifically to give their professional opinion, rather than facts. Expert witnesses, for example, are used not to provide facts about the case, but to help the jury understand difficult scientific concepts related to the facts. These witnesses may be asked to explain a medical condition or how a certain type of accident could cause a specific injury. They are thus allowed to help the court fill in blanks in difficult concepts. This is not speculation because they do not give their opinion on what happened in your specific case unless they have reviewed documents related to it. Rather, they are there to help the court understand whether your claim is possible.
Likewise, medical diagnoses are often used as evidence in a personal injury case. These diagnoses are educated guesses by professionals, and carry more weight than a layman’s opinion.
How does speculation enter testimony?
Speculation creeps into court cases for two reasons:
- Human nature. It’s natural to make guesses and fill in the blanks. It’s even more natural when you are being treated as an authority on what happened in an important case—as all witnesses are. Witnesses try to be helpful, even when it means guessing instead of giving facts.
- Strategy. Attorneys know that speculation can be useful. If it leans the jury in their favor, they might not mind a little speculation. Attorneys from insurance companies, in particular, will make use of any speculation that makes you look bad. They may bend the rules or try to lead a witness toward some damning speculation, hoping that no one will object.
Objecting to Speculation
Fortunately, your lawyer has a right to object to any speculation, in open court or in a deposition. They can do this in two ways:
- Objecting to questions that require speculation. Sometimes an attorney will ask a witness a question that will clearly require them to speculate. Your lawyer can object before the question is even answered.
- Objecting to speculative testimony. In other cases a witness will speculate on their own accord. Your lawyer can object to this as well. If the judge agrees that it’s speculation, the question can be suppressed (not included as evidence) or, in open court, the jury can be specifically instructed not to consider that statement.
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